Blackjack At Thirty
Thousand Feet:
Ainerica's Atteinpt To
Enforce Its Ban On
In-flight Gainbling
Extraterritorially
Steven Grover
(Note: This article is reprinted with the permission of the author and the Texas Wesleyan Law
Review. 1 The law review format of numbered footnotes explained on each page has been changed for
this issue of the Gaming Research & Review Journal. Footnotes have been converted to Endnotes.)
Introduction
Steven Grover, J.D.,
Texas Wesleyan
University School of
Law; B.A., University
of Calgary.
In an attempt to raise revenue and provide an entertainment option for passengers, a number of international airlines servicing the United States want to introduce in-flight gambling.This feature would allow passengers eighteen years or older
to use credit cards to play blackjack, roulette, and poker from video screens fixed to
their seats. The United States represents forty percent of the world's air travel
market and in-flight gambling would provide extra revenue the airlines desperately
need. Unfortunately, U.S. law bans in-flight gambling.
The law that bans the operation of any type of gambling device on board an air
carrier or foreign air carrier is entitled "Gambling restrictions. " 2 In response to this
law, a group of ten international airlines, known as the International Airline Coalition
on the Rule of Law, is presently lobbying Congress to repeal its application. 3 In
challenging the federal law, the airlines claim that the United States' attempt to
impose its national law extraterritorially is contrary to international law and treaties.
This Comment examines the United States' ban on in-flight gambling on foreign air carriers servicing the United States. It argues that the Convention on International Civil Aviation ("Chicago Convention"), grants the United States the authority and the jurisdiction to impose such a law, arguments advanced by legal scholars
to the contrary notwithstanding. However, in the interests of global harmony and to
ensure that the international civil aviation industry will continue to thrive as it has in
the past, this Comment argues that the United States should repeal its ban on inflight gambling.
Gaming Research & Review Journal • Volume 4, Issue 2
1
In analyzing this issue, this Comment first looks at the statute imposing the
ban and its legislative history. Next, this Comment examines the position of each
party on this issue: first, the position of the United States and the reasons for enacting this law, then, the position of
the international airlines and
their primary arguments and interests. The discussion then
explores the provisions of the
Chicago Convention, which
granted the United States jurisdiction to impose its ban on inflight gambling. Finally, this Comment will argue that while the United States has
both the authority and jurisdiction to ban in-flight gambling on international flights,
Congress should repeal its ban with regard to foreign air carriers.
I
Prior to 1994, there were no
restrictions against gambling on
international flights.
I. Legislative History
In examining this issue one needs to first look at the controlling statute and its
legislative history. Prior to 1994, there were no restrictions against gambling on
international flights. That period of relative freedom ended when Senator Slade
Gorton, R-Washington, amended the then current law.
The Gorton Amendment added the following language to the gambling restrictions law: "a foreign air carrier may not install, transport, or operate, or permit the
use of any gambling device on board an aircraft in foreign air transportation." 4
Thus, by prohibiting the transport of gambling devices on flights originating from,
terminating in, or flying over the United States, the Gorton Amendment effectively
banned in-flight gambling both by United States airlines and foreign air carriers,
even while those flights are outside U.S. jurisdiction. 5
By amending the law to include foreign-carrier flights to or from the United
States, Congress attempted to level the playing field among international airlines.
The intent was to avoid placing United States domestic airlines at a competitive
disadvantage in providing international passenger service. 6 Prior to the Gorton
Amendment, U.S. air carriers were prohibited from offering in-flight gambling, but
because of an "unintended loophole" in the law, foreign air carriers were not so
encumbered. 7
The year prior to the Gorton Amendment, U.S. air carriers had asked Congress to permit them to offer gambling. However, uncertainty surrounding gaming
on an air carrier prevented Congress from doing so. 8 The Gorton Amendment
required that, within one year of its enactment, the Secretary of Transportation
would complete a study of:
( 1) the aviation safety effects of gambling applications on electronic interactive
video systems on board aircraft for passenger use, including an evaluation of the
effect of such systems on the navigational and other electronic equipment of the
aircraft, on the passengers and crew of the aircraft, and on issues relating to the
method of payment;
(2) the competitive implications of permitting foreign air carriers only, but not
United States air carriers, to install, transport, and operate gambling applications on
electronic interactive video systems on board aircraft in the foreign commerce of the
2
Gaming Research & Review Journal • Volume 4, Issue 2
Blackjack At Thirty Thousant Feet: America's Attempt To Enforce Its Ban On In-flight Gambling Extraterritorially
United States on flights over international waters, or in fifth freedom city-pair markets; and
(3) whether gambling should be allowed on international flights, including proposed legislation to effectuate any recommended changes in existing law. 9
In March 1996, the Department of Transportation presented its report to Congress and recommended that, at that time, there should be no changes to the law
prohibiting gambling in foreign transportation. 10 Instead, foreign airlines would
have the opportunity to offer video gambling on flights other than those to or from
the United States, and the Department would monitor foreign airlines' implementation of gambling and its development. 11
II. Position of the United States Government
A. Competitive Consequences
Congressional intent in amending the law to encompass non-U.S. air carrier
flights to or from the United States was to avoid putting U.S. airlines at a competitive disadvantage in providing international air service. 12 It is believed that if foreign air carriers could offer gambling to passengers in flights to
or from the United States, they
would enjoy a substantial revenue advantage to their U.S. rivals.13 The Department of
Transportation's report found
that the absence of video gambling per se on U.S. airline international flights was not likely to
have a material effect on U.S.carrier share of international traffic; however, if in-flight gambling were offered,
the report estimated that eighteen percent of international airline passengers would
use it. 14 The restriction against U.S~ airlines offering in-flight gambling to their
international passengers, could therefore, deprive them of a major revenue source
that would be available to their foreign competitors. 15 The report estimated that
video gambling would generate average revenues of $1 million per year per aircraft
for the foreign airlines. 16 At that rate, a law permitting foreign airlines to offer inflight video gambling would result in an additional $112 million per year in gambling
revenue from the United States market. 17
There was little concern that U.S. airlines would lose many of their international customers to foreign airlines if the foreign airlines were permitted to offer
gambling. Nevertheless, the additional revenue available to foreign air carriers
could provide them with the flexibility to offer reduced fares to international airline
passengers which could have a dramatic impact on the distribution of market share.
Moreover, the extra revenues would help them in supporting their operations worldwide.18 Due to the potential competitive consequences of permitting only foreign
air carriers to offer video gambling and given the unwillingness of Congress to permit it on international flights of domestic airlines, the law was amended to avoid
A law permitting foreign airlines to
offer in-flight video gambling would
result in an additional $112 million
per year in gambling revenue from the
United States market.
Gaming Research & Review Journal • Volume 4, Issue 2
3
putting United States airlines at a competitive disadvantage to its foreign rivals in
providing international passenger service.
B. Socio-Economic Cost of Legalized Gambling
Predictably, a concern that nearly always arises in connection with discussions oflegalized gambling also arose during the discussion over legalized in-flight
gambling, namely, the social and economic costs of gambling to the nation. 19
The last twenty years have seen legalized gambling become increasingly popular
as it has rapidly spread across the United States. 20 Arguing in favor of legalized
gambling, proponents typically point to the potential economic benefits state and
local communities would gain from it. 21 Opponents counter that employment and
revenue benefits do not offset the significant socio-economic costs that arise from
legalized gambling, including:
(1) Problem and compulsive gambling, which leads to financial insolvency,
decreased worker productivity due to absenteeism, increased white-collar crime to
support gambling addiction, and child and spousal abuse in the families of compulsive gamblers.
(2) Increased direct public expenditures, such as those for criminal justice,
regulation, and public infrastructure to support gambling operations.
(3) Political corruption by gambling interests. 22
Additionally, morality is always an issue in these discussions. Despite the continued growth oflegalized gambling in the United States since 1974, as can be seen
by the enactment of this particular law, anti-gambling opponents have had some
impact on Congress.
C. Potential Safety Effects
At the time the Gorton Amendment was enacted, there was concern in Congress about the potential safety effects of video gambling on board an aircraft. Two
matters were of particular importance: first, whether the on-board electronic entertainment systems, which would house video gambling, present an increased technical risk for air travel safety; 23 second, whether gambling itself presented any increase in behavioral safety risk, "i.e., would it cause a passenger to behave in a
manner that might interfere with or disrupt the safety-related duties of the aircraft's
flight crew?"24
In the Department of Transportation's report to Congress in March 1996, the
Department found no evidence that the on-board electronic entertainment systems
that would house video gambling posed any type of technical risk to other equipment on a commercial aircraft. 25 In fact, the entertainment systems that would
include a video gambling feature have been certified as safe from a technical standpoint by the Federal Aviation Administration. 26 Nevertheless, the Department could
not dismiss the potential for increased risk stemming from the behavior of certain
passengers while gambling. 27
The potential behavioral risks associated with video gambling arise from the
possibility of problem passengers increasing the work load of the flight attendants
and potentially interfering with the safety-related duties. 28 The Association of Flight
Attendants has expressed concern over potential behavioral issues specific to video
4
Gaming Research & Review Journal • Volume 4, Issue 2
Blackjack At Thirty Thousant Feet: America's Attempt To Enforce Its Ban On In-flight Gambling Extraterritorially
gambling aboard an aircraft, which would include "problem gamblers, passengers
wanting to change seats because someone close by is engaged in gambling, handling
money for gamblers and access to gambling by minors." 29 The Department's study
reported that current flight training requirements, along with the kind of gambling
device to be used in an aircraft, would probably minimize the potential behavioral
risks that the Association ofFlight Attendants fear. 30 However, because no international airline has had any experience with video gambling, the behavioral risks of it
are unknown. 31 Therefore, pending better information on the behavioral risks associated with video gambling, the Department of Transportation was unwilling to authorize on-board gambling. 32
III. Position of the International Airlines
In response to the enactment of the Gorton Amendment, ten major international airlines formed a group known as the International Airline Coalition on the
Rule of Law ("Coalition"). The members of the Coalition include Air France, Air
New Zealand, All Nippon Airways, KLM Royal Dutch Airlines, Lufthansa, Japan
Airlines, Japan Air System, Qantas, Singapore Airlines, and Swissair. The Coalition's
purpose is to lobby Congress to repeal its ban on in-flight gambling with regard to
foreign registered aircraft.
The Coalition argues that, according to customary international law, relevant
conventions, and treaties on the subject, "when an aircraft flying an international
route is outside a particular
state's territorial jurisdiction, only
the state of the aircraft's nationality is competent to permit, regulate or prohibit gambling, or other
types of conduct on board the
aircraft." 33 According to the
Coalition, the United States' attempt to ban in-flight gambling
by banning the transport of gambling devices on foreign air carriers servicing the United States
is an unjustified unilateral assertion of U.S. jurisdiction over otherwise lawful conduct on nonU.S.-registered aircraft while flying outside United States territory. 34 As a result,
the Coalition notes "this unprecedented intrusion on the rights and the sovereignty
of the aircraft's nationality has caused considerable alarm among non-United States
airlines,"35 which has lead them to come together to address this problem with the
goal of securing a reaffirmation of the fundamental jurisdictional principles of internationallaw. 36
In order to promote and uphold the rule of law in the area of international civil
aviation, the Coalition has urged Congress to amend its law on in-flight gambling to
reflect:
(1) the law of the nation in which the aircraft is registered governs the conduct of activities such as gambling on board the aircraft while it is in international
This issue is of great importance to
the Coalition airlines because they
are known worldwide for, and take
pride in, the comfort, convenience
and entertainment they provide to
their passengers.
Gaming Research & Review Journal • Volume 4, Issue 2
5
airspace, and (2) the law of the nation in which the foreign aircraft is located
applies while the aircraft is in the territory of that nation. 37
Therefore, to be consistent with these basic principles of international law, the
Coalition argues that the ban on in-flight gambling should be repealed with regard to
foreign aircraft. However, the United States may prohibit in-flight gambling on foreign aircraft while they are within United States territory. 38 The Coalition does not
view its effort to convince Congress to repeal the ban on in-flight gambling as an
attempt by non-U.S. airlines to put U.S. airlines at a competitive disadvantage,
because according to international law, the United States can do as it pleases with
respect to United States registered aircraft. 39 Nevertheless, the Coalition argues that
"neither the United States nor any other nation has the power to assert its jurisdiction extraterritorially over conduct [such as] gambling, on board aircraft registered
in another nation, despite what reasons it may have for attempting to do so." 40
This issue is of great importance to the Coalition airlines because they are
known worldwide for, and take pride in, "the comfort, convenience and entertainment they provide to their passengers."41 They also do not want to see the current
civilized aviation regime develop into a "free for all system in which every nation
will begin to regulate what type of passenger service can be offered while an aircraft
is flying to or from a nation even while outside the territory of that nation." 42
Despite what many congressional opponents of gambling may think, the Coalition argues that it is not advocating gambling as opposed to non-gambling. 43 Instead, it purports to be lobbying only for the repeal of one particular law, only with
regard to foreign air carriers, and only as an effort to bring the United States into
compliance with customary jurisdictional rules as it had been for many decades
prior to the enactment of its gambling devices ban. 44 The Coalition points out that
since the dawn of aviation the United States has been a leader in the development
of international law principles that govern and support the harmonious global civil
aviation regime. 45 The Coalition called on the United States to show once again its
leadership in this area "by adhering to the rule of law on the extra-territorial jurisdictional limits on states to determine what may or may not take place on the aircraft
and airlines of other states. " 46
IV. Analysis of the International Airline
Coalition's Argument
A. The Chicago Convention
The Chicago Convention was enacted on December 7, 1944. 47 "It is the
fundamental [international treaty] governing the rights and obligations of States regarding international civil aviation."48 Presently, the United States and over 180
other states are members of the Chicago Convention. 49 The major provision of the
Chicago Convention, Article 1, states, ''The contracting states recognize that every
State has complete and exclusive sovereignty over the airspace above its territory. "50
Accordingly, the United States and each member state of the Chicago Convention
has the power to regulate all persons and things within its borders and above its
territoryY In addition, Articles 11 and 12 of the Convention contain principles
consistent with the premise in Article 1. 52
6
Gaming Research & Review Journal • Volume 4, Issue 2
Blackjack At Thirty Thousant Feet: America's Attempt To Enforce Its Ban On In-flight Gambling Extraterritorially
These major provisions of the Chicago Convention lend support to the idea
that the United States has jurisdiction to enforce a gambling devices ban on foreign
aircraft flights to or from the United States. However, advocates for repealing the
ban have read Article 1 of the Chicago Convention very narrowlyY They have
concluded that while an aircraft is outside United States territory and over the high
seas, the United States does not have the right to impose its in-flight gambling ban
on a foreign-registered air carrier. 54
According to the Coalition, under customary international principles of law,
while a foreign aircraft is outside a state's territorial jurisdiction, the aircraft's state
of registry has quasi-jurisdiction to regulate what may or may not occur on that
airplane. 55 This general rule of international civil aviation is codified in Article 17 of
the Chicago Convention which states that "aircraft have the nationality of the State
in which they are registered." 56
Whether there is any basis under customary international law for this position
is questionable. With regard to this particular issue, however, it is clearly unsound.
In essence, the Coalition has noted the United States' efforts to exercise its valid
authority under Article 1 of the Convention has the incidental result oflimiting their
otherwise legal activity outside U.S. jurisdiction. This, they argue, is a violation of
international law. Such an argument ignores the "limitations of rights states can
impose upon each other, limitations which fmd their origin in the principle of sovereignty of the state over the airspace above its territory expressed in Article 1 of the
[Chicago Convention]."57 Because the United States has sovereignty over its territory and airspace, it has the inherent power to impose limitations on foreign aircraft
flights to or from the United States. Those limitations can include the number of
passengers that can be carried on a given flight, or whether in-flight gambling may
take place on those flights to or from the United States. 58 The members of the
Coalition need not adhere to the law unless they voluntarily choose to do so, in order
that they may land in or take off from the United States or its territories.
Also, Article 6 of the Chicago Convention provides that "no scheduled international air service may be operated over or into the territory of a contracting State,
except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization."59 Accordingly, the
United States and each member of the Convention have the right under Article 6 to
impose such limitations as it deems fit on "scheduled" foreign aircraft flights to or
from its borders. 60 So, the letter of the law is explicit. According to Article 6, the
United States does have the inherent authority to impose its ban on in-flight gambling devices on foreign aircraft flights to, from, or over the United States.
In addition to the argument that the state of registry has jurisdiction over an
aircraft while it is outside a country's territory, some commentators argue that, while
over the high seas, the concept of freedom of the seas under Article 87 of the UN
Convention on the Law of the Sea ("UN Convention") also includes the freedom to
fly over the high seas. 61 Although the Chicago Convention does not address the
issue of sovereignty over the high seas, this is irrelevant with regard to this particular
issue. Some legal scholars of international law have compared an aircraft to a ship
and have characterized it as having attributes similar to a ship. 62 While accurate in
some contexts, the analogy of airliner to ship is not valid in this particular context.
Even though air law has much in common with maritime law, the strict provisions of
the Chicago Convention preempt the idea of "flag of convenience" in aviation. 63
Gaming Research & Review Journal • Volume 4, Issue 2
7
Instead, because of the express provisions in Articles 1 and 6 of the Chicago Convention, the United States has the authority to enact such limitations as it deems
appropriate. Those include the authority to ban in-flight gambling on scheduled
foreign aircraft flights to, from, or over the United States.
B. Specific Circumstances When A Country May Exercise
Its Jurisdiction Over An Aircraft Outside Its Territorial
Airspace
Apart from a country's express authority to regulate scheduled international
civil aircraft flights from their country, derived from Article 1 and 6 of the Chicago
Convention, there are specific circumstances in which the United States and other
countries have had limited jurisdictional power to control foreign aircraft beyond
the scope of their territory. These specific instances provide additional support for
U.S. efforts to enhance its gambling devices ban extraterritorially.
1. Contiguous Zone
Under customary international law, the United States or any other coastal state
may exercise "in a zone contiguous to its territorial sea, such control as is necessary
to prevent and punish the infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea."64 The idea of the
contiguous zone is addressed by the UN Convention; 65 however, it may not extend
beyond 24 nautical miles. 66 Although the concept of contiguous zone is generally
discussed in the context of the seizure of ships, the activities of aircraft in the airspace bordering the territorial sea of a country may also affect that state's interest;
therefore, such activities give rise to preventive action. 67 Accordingly, the United
States or any other coastal state has the right to exercise control over an aircraft that
violates its laws or regulations within its contiguous zone. 68
2. Air Defense Identification Zones
A major claim to aerial jurisdiction has been the establishment by a number of
states, including the United States, of air defense identification zones ("ADIZ").
Since 1950, in pursuit of objectives such as security, many states have extended
limited aspects of their sovereignty to the high seas. 69 An ADIZ in some cases can
extend several hundred miles seaward. 70 The United States government by means
of regulations has established an ADIZ off both the Atlantic and Pacific coasts of
North America. 71 The zones are designed so as to permit the positive identification
of an aircraft approaching the shores of the United States while they are over the
ocean. 72 The regulations achieve this by requiring all aircraft to radio their identification to American aeronautical facilities prior to entering the ADIZ. 73 Once inside
the zone, the aircraft must follow the specified procedures of flight plan and instructions of the air traffic authorities. 74 Failure to do so may lead to sanctions ranging
from aerial interception by military aircraft to escorted forced landing to a U.S.
airfield. 75
'
The use of ADIZs has been justified on the basis of comparison to the concept
of the contiguous zone or to the doctrine ofnecessity. 76 The early identification and
8
Gaming Research & Review Journal • Volume 4, Issue 2
Blackjack At Thirty Thousant Feet: America's Attempt To Enforce Its Ban On In-flight Gambling Extraterritorially
control of foreign aircraft have been declared necessary "to prevent surprise attacks or infringements upon essential security interests and to ensure the safety of
international traffic. " 77
3. The Tokyo Convention
The Tokyo Convention on Offenses and Certain Other Acts Committed on
Board Aircraft ("Tokyo Convention"f8 is another multilateral convention that allows a nation, in very limited situations, to exercise jurisdiction over a foreignregistered aircraft. The Tokyo Convention primarily deals with crimes committed
aboard an aircraft. Although it is stated in Article 1(2) of the Tokyo Convention that
it applies to such offenses or acts committed on board an aircraft registered in the
contracting state/9 the Convention goes on to state an exception to this general rule.
According to Article 4 of the Tokyo Convention, such interference is permitted by a
contracting state which is not the state of registry if the offense has an effect on the
territory; is committed by or against a national or permanent resident of such state;
or is against the security of the state. 80 Therefore, "above the high seas, this constitutes an exception to the general rule that an aircraft is subject to the exclusive
jurisdiction of its State of regulation. " 81
In addition, according to Article 1(b) of the Tokyo Convention, a country has
the right to exercise control over a foreign-registered aircraft when "acts which,
whether or not they are offenses, may or do jeopardize the safety of the aircraft or
of persons or property therein or which jeopardize good order and discipline on
board."82 As the behavioral risks that could possibly arise are unknown at this time,
there is the possibility that in-flight gambling could lead to aberrant behavior by
passengers using the system that could jeopardize the safety of the passengers and
the aircraft. Therefore, Article 1(b) of the Tokyo Convention provides additional
justification for the United States to enforce its gambling ban extraterritorially.
4. Special Aircraft Jurisdiction of the United States
In addition to the specific circumstances previously listed, the United States
may exercise jurisdiction over a foreign-registered aircraft while in transit to the
United States under the United States law that deals with the "Specific Aircraft
Jurisdiction of the United States." 83 United States courts have also upheld the
notion of special aircraft jurisdiction of the United States. In Cumney v. Nixon, 84
an action was brought by a passenger on a charter flight from Rio de Janeiro to
Memphis, Tennessee, against certain passengers for recovery for a physical assault committed against him during the flight. 85 Although the district court dismissed the action, the Court of Appeals ruled that not only was a U.S. criminal
statute within the special aircraft jurisdiction of the United States, but also the intent
of Congress was that ''federal law appl[y] to American and other aircraft while
such aircraft are en route from an airport in the United States or are returning from
a foreign country directly to an airport in the United States." 86
Another case defining the special aircraft jurisdiction of the United States is
United States v. Georgescu, 87 which dealt with a criminal sexual assault by aRomanian national on a nine-year-old girl over the mid-Atlantic ocean on a Scandinavian
Airlines flight to New York. 88 Despite the defendant's claim oflack of U.S. jurisGaming Research & Review Journal
'* Volume
4, Issue 2
9
diction, the district court ruled that it did have jurisdiction to hear the case because
it was the intent of Congress that the criminal statutes at hand, "Aggravated sexual
abuse" 89 and "Special Aircraft Jurisdiction of the United States," 90 were designed
"to extend jurisdiction to include
crimes committed in non-U.S.
airspace aboard foreign aircraft
that land in or depart from the
United States."91 In its ruling
the district court also stated that
"even
if
Congress's
criminalization of defendant's
acts and its exercise of jurisdiction were counter to international
Ia w, this would not lessen the
validity of the statute."92 In fact,
although courts should make an
attempt to interpret domestic law
consistently with international customs and obligations "in the event of irreconcilable conflict, the courts are bound to apply domestic law if it was passed more
recently." 93 Therefore, the United States' gambling ban could be enforceable under the "Special Aircraft Jurisdiction of the United States. " 94 Moreover, since the
statute that prohibits in-flight gambling was passed subsequent to the development
of traditional notions of international law and treaties, the prohibition on in-flight
gambling should be controlling. As a result, in the event of conflict, federal law
preempts international law.
I
If the United States is allowed to
impose its gambling ban, then there
is nothing to stop other nations from
adopting similar laws regulating the
conduct on board a United States
aircraft.
V. The United States Should Repeal Its Ban on
In-Flight Gambling With Regard to
International Airlines
A. Need for Order in International Civil Aviation
1. Purpose of the Chicago Convention
Since the adoption of the Chicago Convention, the United States and other
nations have recognized that, for the international civil aviation industry to run
smoothly, there must be a clear legal framework that each contracting state follows.
This goal is reflected in the preamble which states:
Whereas the future development of international civil aviation can greatly help
to create and preserve friendship and understanding among the nations and people
of the world ... to avoid friction ... the undersigned governments having agreed on
certain principles and arrangements in order that civil aviation may be developed in
a safe and orderly manner.... 95
From the preamble comes the fundamental principle underlying the Convention that the member states should deal in "good faith" with one another. Thus, for
10
Gaming Research & Review Journal
* Volume
4, Issue 2
Blackjack At Thirty Thousant Feet: America's Attempt To Enforce Its Ban On In-flight Gambling Extraterritorially
there to be order and to minimize conflict, it is important that each nation comply
with the spirit of the Chicago Convention.
If the United States is allowed to impose its gambling ban, then there is nothing to stop other nations from adopting similar laws regulating the conduct on board
a United States aircraft. It could lead to unpredictability in the international civil
aviation industry, because each nation could begin to regulate what type of passenger service is offered on flights to or from its country. Certainly, if France enacted
a law regulating that only wine could be served on flights to or from its country in
the interest of political,
competitive, and moral
concerns, one would
surely expect Congress to
question whether France
had jurisdiction under internationallaw to enforce
such a law. The United
States' ban on in-flight
gambling with regard to
the foreign airlines should
be repealed, because it
will probably lead toreciprocal actions by other nations disrupting the order and harmony under which the
international civil aviation industry has operated for over fifty years.
Revenue raised by in-flight gambling
would not only provide the injection of
capital that the airlines need, but could
also benefit society by possibly leading
to reduced fares and better service.
B. Socio-Economic Costs Can Be Kept to a Minimum
Legalized gambling is a controversial issue wherever it is raised, and opponents
question the socio-economic costs to society. However, with regard to in-flight
gambling, these negative effects can probably be kept to a minimum. In a recent
survey conducted by the Department of Transportation, the majority of the people
surveyed reacted favorably to the concept of in-flight gambling. 96 In fact, most of
them thought in-flight gambling would be fun, convenient, and enjoyable. 97
Along with the favorable response to video gambling, the airlines and the manufacturers of the gambling systems have taken a number of preventive measures with
regard to the possible behavioral-related concerns opponents of the idea would likely
raise. Specifically:
( 1) The use of polarized screens should minimize the need to relocate passengers who object to gambling or other entertainment features since the screens can
be viewed clearly only by persons sitting directly in front of them. Similarly, all
audio is transmitted through individual headphones.
(2) Transactions will be handled via credit card, eliminating the need to handle
cash. The system delivered to British Airways, for instance, includes this feature,
and both VISA and MasterCard have pilot programs for eliminating cash transactions.
(3) The electronic systems that will be used include a selective disabling function, allowing gambling games to be shut down at seats occupied by minors. In
addition, the system will provide a toll-free connection enabling passengers to direct
questions and resolve problems directly with the system vendor instead of the
aircraft's flight crew. 98
Gaming Research & Review Journal • Volume 4, Issue 2
11
One airline also decided to limit stakes by setting a maximum limit of $350 per
credit card, and single winnings would be limited to $3,500. 99 The decision to limit
stakes was made because many people in the industry worried that gambling machines could anger passengers particularly if the stakes were high. 100 Anticipating
the reaction to the introduction of on-board video gambling, the airlines took these
steps to ensure that the possible negative consequences can be kept to a minimum.
C. Airlines Desperately Need an Injection of Capital
As a more practical argument, the current United States ban on in-flight gambling should be repealed because the international airlines could use the additional
revenue generated by in-flight gambling. The economic performance of the international airlines over the last two decades can be described as "abysmal." 101 The
international airline industry has never been very profitable. From 1977 to 1992,
the international airline industry earned a net profit of 0.6 percent in revenue, on
gross revenues of over $2 trillion. 102 During the first four years of this decade,
losses ranged from $6.7 billion in 1991 to a loss of $1.5 billion in 1994. 103 As a
result of these losses airlines today carry huge debts. 104
The international airlines can probably generate substantial revenue by offering in-flight gambling on flights within their own markets. However, because the
United States is the largest and most important aviation market in the world, 105 the
international airlines could generate even more gambling revenue if they are able to
offer it on their flights to or from the United States. Without being able to offer this
entertainment option while servicing the U.S. market, the international airlines are
forfeiting $112 million per year in revenue. 106 As a result, the ban hurts the international airlines financially.
Revenue raised by in-flight gambling would not only provide the injection of
capital that the airlines need, but could also benefit society by possibly leading to
reduced fares and better service. A crisis in the international commercial aviation
industry is not far away, and with the United States' ban, it may come earlier than
anticipated. 107
D. Ban on In-Flight Gambling is Contrary to Open Skies
On August 5, 1992, the Department of Transportation announced that.it began
a new initiative to liberalize and deregulate the international commercial aviation
markets by negotiating "Open Skies" agreements with European countries. 108 Open
Skies represents a policy toward establishing a less restrictive civil aviation regime,
allowing an air carrier unlimited flights between two nations. 109 In September
1993, the United States signed its first Open Skies agreement with the Netherlands,
which allows both American and Dutch air carriers to fly and land in any airport in
each country. 110 This agreement signaled a step toward establishing a free market
system in international civil aviation. 111
However, since the enactment of the United States' ban on in-flight gambling,
it seems that the United States has taken a step contrary to its Open Skies policy. In
an attempt to put all players in the industry on an equal playing field, Congress
amended the law to apply to foreign as well as domestic air carriers. Clearly, this
particular law is an act by the protectionist forces in Congress, since the stated
12
Gaming Research & Review Journal #Volume 4, Issue 2
Blackjack At Thirty Thousant Feet: America's Attempt To Enforce Its Ban On In-flight Gambling Extraterritorially
purpose behind it is to keep United States airlines from being at a competitive
disadvantage to its international rivals. As a result, this law falls contrary to the
United States' Open Skies policy to deregulate and liberalize the international aviation industry. The protectionist nature of the in-flight gambling ban seems to be
contrary to the United States' commitment to open markets.
Conclusion
A number of international airlines servicing the United States would like to
offer in-flight gambling to their passengers. They cannot currently do so because
the United States bans in-flight gambling devices on flights to or from the United
States, even while a foreign aircraft is outside of U.S. airspace. Congress enacted
this law because of competitive, safety, and moral concerns. Despite the fact that
the Coalition argues that these reasons for enacting the law are unsound, according
to the Chicago Convention, the United States does have jurisdiction to enforce a ban
on in-flight gambling. However, in the interest of global harmony and to ensure that
the international civil aviation industry will continue to thrive as it has in the past, the
United States should repeal the application of this law on international airlines while
they are outside U.S. territory.
Endnotes
1. The author would like to dedicate this paper to the memory of Professor Shirley Zabel. This paper
was originally published in TEXAS WESLEYAN LAw REviEW, VoL. 4 No. 2 Spring 1998.
2. Federal Aviation Act, 49 U.S.C. § 41311 (1994).
3. See Sim Wai Chew, Singapore Airlines Among Airline Group Working Against U.S. Ban on In-Flight
Gambling, SINGAPORE STRAIT TIMES, Aug. 5, 1996, at 3.
4. 49 U.S.C. § 41311. Section 205 was added to Section 41311 of Title 49 of the United States Code.
5. Gambling is prohibited on international flights of United States carriers and on connercial flights
within United States airspace under previously enacted legislation, popularly known as the Gambling
Devices Transportation Act (also known as the Johnson Act), codified in 15 U.S.C. § 1171 (1982).
6. See 140 CoNG. REc. S6663-S6664 (daily ed. June 9, 1994) (statement of Senator Gorton).
7. See id.
8. See id.
9. 49 U.S.C. § 41311.
10. See U.S. DEP'T OF TRANSP., VroEo GAMBLING L"l FoREIGN AIR TRANSPORTATION 2 (1996) (unpublished
report submitted by the Department of Transportation to Congress).
11. See id.
12. See 140 Cor-;G. REc. S6, 663-64 (daily ed. June 9, 1994) (statement by Senator Gorton).
13. See U.S. DEP'T OF TRANSP., supra note 9, 39.
14. See id. at 40.
15. See id. at 44.
16. See id. at 48.
17. See id. at 39.
18. See id.
19. See id. at 13.
20. See id. at 10.
21. See id. at 12.
22. !d.
23. See id. at 3.
24. !d.
25. See id. at 31.
26. See id. at 4.
Gaming Research & Review Journal • Volume 4, Issue 2
13
27. See id. at 3.
28. See id. at 35.
29. ld.
30. See id.
31. See id. at 36.
32. See id. at 3.
33. lNrER.I\"ATIONAL AIRLINE CoALITION oN THE RuLE oF LAw, PosiTION PAPER REGARDING PRINCIPLES OF
INTERNATIONAL AIR LAw GoVERNING THE ExERcrsE OF NATIONAL JURISDICTION To CoNTROL Cmmucr ABOARD
CIVIL AIRCRAFT 1 (Feb. 27, 1995) (unpublished paper, on file with Texas Wesleyan Law Review).
34. See id. at 2.
35. Id.
36. See id. at 2-3.
37. Id. at 4.
38. See id.
39. See id. at 4-5.
40. ld. at 5.
41. !d.
42. !d.
43. See id. at 6.
44. See id.
45. See id.
46. !d.
47. Convention on International Civil Aviation, Dec. 7, 1944,61 Stat. 80, T.l.A.S. No. 1591, 15 U.N.T.S.
295.
48. LuDWIG WEBER, Chicago Convention 11 ENCYCLOPEDIA OF PuBLIC lNrERKATIONAL LAw, 54 (1989).
49. See l.H.PH. DIEDERICKS-VERSCHOOR, AN lNrRooccnoN To AIR LAw 10 (5th eeL 1993).
50. Convention on International Civil Aviation, supra note 46, at art. 1.
51. See GEORG SCHWARZENBERGER & E.D. BROWN, A MANUAL OF INTERNATIONAL LAw 74 (6th ed. 197 6).
52. Article 1 provides: Subject to the provision of this Convention, the laws and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged in international air
navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to
the aircraft of all contracting States without distinction as to nationality, and shall be complied with by
such aircraft upon entering or departing from or within the territory of that State.
53. See BRIAN C. O'DONNELL, Gambling to be Competitive: The Gorton Amendment and International Law, 16 DICK. J. INT'LL. 251,263 (1997).
54. See id.
55. See International Airline Coalition on the Rule of Law, supra note 32, at 1.
56. Convention on International Civil Aviation, supra note 46, at art. 17.
57. DIEDERICKS-VERSCHOOR,supranote48, at 12.
58. See id.
59. Convention on International Civil Aviation, supra note 46, at art. 6.
60. See DIEDERICKS-VERSCHOOR, supra note 48, at 15.
61. In relevant part, Article 87 provides: 1. The high seas are open to all States, whether coastal or
land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention
and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States;
(a) freedom of navigation; (b) freedom of overtlight; 2. These freedoms shall be exercised by all States,
with due regard for the interests of other States in their exercise of the freedom of the high seas, and also
with due regard for the rights under this convention with respect to activities in the area.
United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 87, 21l.L.M. 1261.
62. See GERALD Vm; GLAHN, LAw AMOKG NATIONS 345 (3d ed. 1976).
63. See DIEDRICKS-VERSCHOOR, supra note 48, at 12.
64. See Kay Hailbronner, Freedom of the Air and the Convention of Law of the Sea, 77 AM. J. L'\'T'L
L. 490,513-14 (1983).
65. United Nations Convention of the Sea, supra note 60, at art. 33.
66. See id.
67. See Hailbronner, supra note 63, at 513.
68. See id.
69. See Elizabeth Cuadra, Air Identification Zones: Creeping Jurisdiction in the Airspace, 18 VA. J.
1;-;T'L L. 485 (1978).
70. See id.
14
Gaming Research & Review Journal ~ Volume 4, Issue 2
Blackjack At Thirty Thousant Feet: America's Attempt To Enforce Its Ban On In-flight Gambling Extraterritorially
71. See Ivan L. Head, ADIZ, International Law and Contiguous Airspace, 2 HARv. L. CLUB BuLL. 28,
29 (1960).
72. See id.
73. See id.
74. See id.
75. See Cuadra, supra note 68.
76. See Hailbronner, supra note 63, at 516.
77. Id.
78. Convention on Offenses and Certain Other Acts Committed On Board Aircraft, Sept. 14, 1963, 704
U.N.T.S. 219, 20 U.S.T. 2941.
79. See id. at art. 1.
80. Id. at art. 4.
81. See NICHOLAS GRIEF, PUBLIC LvrERNATIONAL LAw IN AIRSPACE ABOVE THE SEAS 61 (1994).
82. Convention on Offenses and Certain Other Acts Committed On Board Aircraft, supra note 77, at
art. 1(b).
83. Under 49 U.S.C. § 46501 (1994), the United States has "special aircraft jurisdiction" over a foreign
aircraft outside the United States if the airplane's next scheduled or last place of departure was the
United States and an individual on that plane commits an offense as defined in the Convention for
Suppression of Unlawful Seizure of Aircraft.
84. 615 F.2d 389 (61h Cir. 1980).
85. See id. at 390.
86. Id. (emphasis added).
87. 723 F.Supp. 912 (E.D.N. Y. 1989).
88. See id. at 913.
89. 18 u.s.c. § 2241 (1986).
90. 49 u.s.c. § 46501 (1994).
91. 723 F. Supp. at 915.
92. Id. at 921.
93. Id.
94. 49 u.s.c. § 46501 (1994).
95. Convention on International Civil Aviation, supra note 46.
96. See U.S. DEP'r oFTRANSP., supra note 9, at 19.
97. See id.
98. Id. at 37.
99. See Chew, supra note 2, at 2.
100. See id.
101. Andreas Vamos-Goldman, The Stagnation of Economic Regulation Under Public International
Air Law: Examining its Contribution to the Woejitl State ofthe Airline Industry, 23 TR.<~.NSP. L.J. 425, 440.
(1996).
102. See id. at 440-41.
103. See id. at 441.
104. See id.
105. See id. at 455.
106. See U.S. DEP'r OF TRANSP., supra note 9, at 39.
107. See Vamos-Goldman, supra note 99, at 440.
108. See In reDefining "Open Skies," Department of Transportation Order No. 92-8-13, 1992 WL
204010, at *1.
109. See Adam L. Schless. Open Skies: Loosening The Protectionist Grip on International Civil
Aviation, 8 EMORY LNT'LL. REv. 435,447 (1994).
110. See id. at 449.
111. See id. at 438.
Gaming Research & Review Journal • Volume 4, Issue 2
15